Date of filing:18.09.2017

                                                                                                Date of Disposal:25.01.2024

BEFORE THE KARNATAKA STATE CONSUMR DISPUTES REDRESSAL COMMISSION, BENGALURU (PRINCIPAL BENCH)

DATED: 25^th DAY OF JANURARY 2024

PRESENT

Mr. K. B. SANGANNANAVAR: Pri. Dist. & Session Judge (R)- JUDICIAL MEMBER:

Mrs.M.DIVYASHREE : LADY MEMBER

APPEAL NO. 1913/2017

O R D E R

BY Mr. K. B. SANGANNANAVAR: Pri. Dist. & Session Judge (R)- JUDICIAL MEMBER:

1. This is an appeal filed by OP in CC/61/2014 on the file of DCDRF, Mangalore, aggrieved by the order dated 15.07.2017. (The parties to this appeal will be referred as to their rank assigned to them by the Forum below).

2. The Commission examined grounds of appeal, impugned order, appeal papers and heard learned counsels.

3. The Forum below held – complainant is entitle for a sum assured under the policy for Rs.4,39,000/- towards IDV, holding complainant suffered constructive total loss by rejecting not only estimated cost of repair at Rs.8,85,961/- + supplementary estimate for Rs.1,63,629/- but also the surveyors assessment at Rs.2,28,551/- towards cost of repair and Rs.62,263/- towards labour charges.  It is this order being assailed in this appeal contending that Forum below erred in holding that surveyor has not given   details of estimation.  The Forum below ought to have seen, the surveyor has categorically stated in his mail dated 23.10.2013 sent to the Auto Matrix and also to the complainant herein that the car was damaged only in the front portion and hence there is no need to change the entire body shell.  The Forum below failed to see the report submitted by licensed surveyor Mr.Sasi Kumar and the surveyor has assessed damages caused to the vehicle to the tune of Rs.1,56,123/- and recommended  liability of the insurer may increase by 10% to 15 % after dismantle, was not at all examined and  resulting thereby passing impugned order which is contrary to facts and law is liable to be set aside.

4. It has come in the enquiry; insured vehicle was a new TATA Indica Vista of 2012 model was met with an accident on 28.06.2013 and it  was towed for repair to its authorized dealer M/s Auto Matrix, Mangalore and had paid Rs.13,760/- towards towing charges.  This Authorized dealer has estimated the cost of repair at Rs.8,85,961/- and further under supplementary estimation at Rs.1,63,629/-. Thus he had estimated cost of repair at Rs.10,49,590/- which of course is more than the IDV which cannot be considered by the commission below was rightly not considered.  It is not in dispute IDV of the insured vehicle was Rs.4,39,000/-.  It has also come in the enquiry OP insisted complainant to repair the damaged vehicle and  as such complainant had held correspondence  with M/s Auto Matrix, Mangalore had sought clarification about the post repair problems if the body shell is repaired instead of replace.  The repairer had appreciated the post repair problem like rusting, loss of original strength, breakage of welding, wheel alignment and strength of the vehicle. Hence during discussion the repairer had stated that they cannot give any assurance, if the body shell is repaired.  So according to them, the body shell needs to be replaced in to-to instead of repairing it.

5. It has also come in the enquiry the surveyor appointed by the insurer according to complainant is not a competent surveyor to assess the damages of more than Rs.5,00,000/- value, as  such,  had not considered all the parts required to be replaced and not assigned any reason for the same. Learned counsel for complainant would submit, surveyor’s report cannot be considered as a conclusive proof, since he was not examined before the forum to rebut report.  Learned counsel submits when his competency to survey the vehicle damages caused up to Rs.5,00,000/- considering IDV at Rs.4,39,000/- and when repair estimation amounts to Rs.10,49,590/-, his report assessing net loss based on cost of repairs to the tune of Rs.2,28,551/- and Rs.62,263/- towards labour charges as against Rs.10,49,590/- estimation of  M/s Auto Matrix, Mangalore the authorized dealer, has to be held his examination before the Forum below alone would through a light upon these nice questions, failing which Forum has to be held right in concluding complainant had suffered constructive total loss which was rightly considered by the forum below and   award of Rs.4,39,000/- on par with IDV has some considerable force.

6. Learned counsel for complainant placed a reliance reported in III (2004) CPJ 250 in the case between National Insurance Co. Ltd. v. Dev Spinners Ltd. and another wherein held – complainant accepted money under protest, not stopped from filing complaint.  In our view if the insured had received some amount from insurer still can sue the insurer under CPA. Further learned Counsel placed a decision reported in III (2204) CPJ 308 in the case between New India Assurance Co. Ltd. v. Paramjit Sing and another Punjab SCDRC, wherein held – Surveyor not justified in not including cost of body shell – No affidavit filed in support – No justification in not paying entire claim.  The Hon’ble Supreme Court in Civl Appeal No.7033/2009 in the case between National Insurance Company Ltd v. M/s Hareshwar Enterprises (P) Ltd. and others on 18.08.2021 held –

The assessment of loss by an approved surveyor is a prerequisite for the settlement of insurance claims.A surveyor report is statutorily recognized and is a basic document in determining claims.However, the surveyor report is not the final word and is not conclusive.The surveyor report is not binding on the insurer or the insured.Any contrary evidence, including the investigation report, can be produced to rebut the surveyor report.It is for the adjudicating Forum to assess which evidence is credible and can be relied upon.A surveyor report can be relied upon if it inspires confidence, and there is no need to place reliance on any other material.A surveyor report can be relied upon if it is not perfunctory and refers to all aspects.

Thus this decision in our view is directly applicable to the facts of the case decided by the Forum below with all force and the Forum below being adjudicatory body has rightly concluded loss suffered by complainant is constructive total loss, thereby rightly considered IDV on part at Rs.4,39,000/- as just compensation to be awardable for the loss suffered by complainant.In such conclusion towing charges paid by complainant at Rs.14,000/- has to be held covered under Rs.4,39,000/-. In other words, awarding Rs.14,000/- towards towing charges by Forum below has to be disallowed and awarding Rs.20,000/- towards pain and sufferings is reduced to Rs.5,000/- and maintain Rs.5,000/- award as cost of litigation as just and proper. Further awarding interest @ 08% p.a. has to be held on higher side considering the bank rate of interest is reduced to 06% p.a. With such conclusion, proceed to modify the award and directed OP1 to pay a sum of Rs.4,39,000/- along with interest @ 06% p.a. from the date of complaint till the date of realization and do pay Rs.5,000/- towards pain and sufferings and Rs.5,000/- as cost of the proceedings within 45 days from the date of the order.The complaint as against OP2 stands dismissed with no order as to costs.

7. The Amount   in deposit is directed to be transfer to Commission below for needful.

8. Send a copy of this Order to the District Commission and parties to the appeal for information.

        Lady Member                                  Judicial Member             

*GGH*